The Family Lawyer's Guide to Assisted Reproduction Law
| Publication year | 2015 |
| Author | Deborah H. Wald, Esq. |
Deborah H. Wald, Esq.
Deborah H. Wald is a family law attorney in San Francisco, CA, with over 15 years experience representing contemporary families and children. For more information please visit www.waldlaw.net or send an email to info@waldlaw.net.
As more individuals and couples turn to assisted reproduction in their quests to become parents, family law attorneys will be called upon more frequently to address issues related to assisted reproduction law. Common examples include fights between divorcing couples over who gets the frozen embryos, and parentage disputes when a couple has used donated eggs or sperm so only one of them is genetically related to their child. Yet, assisted reproduction law remains a mystery to many family law attorneys. This article attempts to provide some basic information for family law attorneys that will assist them in addressing assisted reproduction issues as they arise in their cases.
"Assisted reproduction" is defined in the California Family Code as "conception by any means other than sexual intercourse." (Cal. Fam. Code § 7606 (a).) Assisted reproduction includes egg donation, sperm donation, embryo donation, and surrogacy. However, instead of having one statutory scheme to cover all the various types of assisted reproduction, our Family Code addresses each one separately (if at all).
As a preliminary matter, our Family Code has at least two important procedural statutes that address who can bring a case to establish (or, presumably, disestablish) parentage in cases involving assisted reproduction. Family Code section 7630 (f) provides that "[a] party to an assisted reproduction agreement may bring an action at any time to establish a parent and child relationship consistent with the intent expressed in that assisted reproduction agreement." An "assisted reproduction agreement" is defined, at Family Code section 7606 (b). as "a written contract that includes a person who intends to be the legal parent of a child or children born through assisted reproduction and that defines the terms of the relationship between the parties to the contract."
Pursuant to these two statutes, any person who enters into a written agreement (e.g. a sperm donation contract) that sets out the intentions of the parties as to who will be a parent and who will not, will have standing to petition the court to obtain an order of parentage or non-parentage consistent with the intentions memorialized in the agreement.
Sperm donation, because it is relatively simple and also relatively inexpensive, is probably the most common form of assisted reproduction. The rules applying to sperm donation can be found in Family Code section 7613. Pursuant to section 7613 (a), the spouse of a woman who conceives through assisted reproduction using donated sperm, where the assisted reproduction is performed "under the supervision of a licensed physician," is treated in law as the natural parent of any child conceived as a result of the sperm donation. DNA test results are not admissible to prove paternity in cases falling under Family Code section 7613, subdivision (a). (Cal. Fam. Code § 7541 (e)(2).)
The rights and responsibilities of sperm donors are set forth in Family Code section 7613 (b), which currently provides that: "The donor of semen provided to a licensed physician and surgeon or to a licensed sperm bank for use in assisted reproduction of a woman other than the donor's spouse is treated in law as if he were not the natural parent of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child."
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The question of how courts should differentiate between sperm donors and fathers—and what role medical personnel and procedures should play in that distinction—is being debated in California and around the country. For example, a recent Virginia case held that a man who donated sperm directly to a woman for purposes of a home insemination was a father and not a sperm donor because the woman used a turkey baster for the insemination and a turkey baster is not a "medical device" as required by Virginia's assisted reproduction statute. In California, the requirement that the sperm be donated to a physician or sperm bank in order for the man to be a donor and not a father has been interpreted by many to mean that a woman can have a friend who is a physician come to her home, receive the sperm from the donor in one room, walk it down the hall to the woman, and then leave. In other words, the import of the doctor-as-go-between in 7613(b), as well as the meaning of the requirement of medical "supervision" in 7613(a), is not entirely clear.
The American Bar Association published a Model Act Governing Assisted Reproductive Technology in February 2008, which was intended to be consistent with the 2000 and 2002 versions of the Uniform Parentage Act, and which does away with...
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